1824982 (Refugee)

The applicant, a national of Pakistan, sought a protection visa. The dispute concerned whether Australia had protection obligations towards him under the Migration Act 1958 (Cth) and the Refugees Convention. The matter came before the Tribunal for review.

The Tribunal was required to determine if the applicant met the criteria for a protection visa, specifically whether he was a refugee within the meaning of Article 1A(2) of the Refugees Convention, or alternatively, if Australia had complementary protection obligations towards him under s.36(2)(aa) of the Act. This involved assessing whether the applicant had a well-founded fear of persecution for reasons of race, religion, or political opinion, or was a member of a particular social group, and whether effective protection was available in Pakistan. The Tribunal also had to consider the reasonableness of relocation within Pakistan as an alternative to returning to his home region.

The Tribunal found that the applicant, a Pashtun of the Bangash tribe and a Shia Muslim, had a well-founded fear of persecution. This fear stemmed from the cyclical nature of violence in his home region of Kurram agency, the presence of militant groups such as Lashkar-e-Jhangvi (LeJ) and the Islamic State (IS) with anti-Shia agendas, and the vulnerability of the Shia population to sectarian attacks. The Tribunal accepted that the applicant, due to his ethnicity, religion, and imputed political opinion opposing extremist Sunni ideologies, faced a real chance of serious harm amounting to persecution. Furthermore, the Tribunal found that state protection in Pakistan was weak and unpredictable, rendering the applicant unable to access effective protection. The Tribunal also considered relocation, but concluded that given the applicant's mental health issues, lack of family support elsewhere in Pakistan, and the risk of discrimination as a Pashtun and Shia, relocation would not be reasonable in all the circumstances.

The Tribunal was satisfied that the applicant met the criterion set out in s.36(2)(a) of the Migration Act, finding that Australia had protection obligations under the Refugees Convention. The matter was remitted for reconsideration with the direction that the applicant satisfies this criterion.